Draft Contract 1

From Maze

The MIT Press Massachusetts Institute of Technology 55 Hayward Street Cambridge, Massachusetts 02142

Letter of Agreement

July 8, 2010 Nick Montfort, Patsy Baudoin, John Bell, Ian Bogost, Jeremy Douglass, Mary Flanagan, Mark Marino, Michael Mateas, Casey Reas, Warren Sack, Mark Sample, and Noah Vawter

Dear Authors (as listed above),

This letter is our agreement to publish your work, tentatively entitled

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(which will be referred to in this letter as “the Work”), on the terms and conditions that follow:

Author’s grant

1. You hereby grant to Massachusetts Institute of Technology all right, title, and interest in the Work. This grant includes, without limitation, the entire copyright in the Work in all countries of the world for all terms of protection and with respect to all media now known or hereafter discovered.

Author’s warranty

2. You warrant: (a) that you are the sole owner of copyright in the Work; (b) that the Work is original throughout; (c) that your right to make the grants set out in paragraph 1 is complete and unencumbered; (d) that the Work has not been published before, and that no agreement for publication is outstanding; (e) that no derivative works based upon the Work exist, and that no licenses with respect to the Work are outstanding; (f) that as long as this contract is in force between us, you will not publish or cause to be published any work that is competitive with the Work, unless our written permission is first obtained (a work is “competitive” if it is published in book or electronic form and deals with substantially the same subject matter); (g) that the Work contains no scandalous, libelous, obscene, or otherwise unlawful matter, and that it does not invade the privacy or otherwise infringe upon the common-law or statutory rights of anyone; and (h) that the Work contains no instructions that, if carried out by the reader, would cause physical injury to any person. Warranties (a) through (e) do not apply to material of your own or of other authors for whose inclusion in the Work you have obtained valid permission.

Materials created by other persons

3. In amplification of paragraph 2, you agree that you will obtain, at your own expense, all necessary permissions, in writing, for any materials (such as illustrations, tables, or extended extracts) to be included in the Work for which the copyright is owned by someone else. Where instead the materials you wish to include will be created for the Work at your request, you will either commission those materials on a work-for-hire basis, so that they belong to you automatically and thus are subject to paragraph 1 of this agreement, or you will secure a copyright transfer from the author to us, in either case using forms that we shall supply to you on request.

Indemnifications; enforcement of rights

4. If anyone brings any claim or action alleging facts that, if true, constitute a breach of any of the foregoing warranties, you will hold harmless and indemnify us, our grantees, our licensees, and our distributees against any liability, whether under judgment, decree, or compromise, and any legal fees and expenses arising out of that claim or action, and you will cooperate fully in any defense we may make to such claim or action. Moreover, you agree to cooperate in any claim or other action seeking to protect or enforce any right you have granted to us in the Work. If any such claim or action fails because of facts that constitute a breach of any of the foregoing warranties, you agree to reimburse whoever brings such claim or action for expenses and attorneys’ fees incurred therein. This paragraph and the warranties in paragraphs 2 and 3 will survive the termination of this agreement.

Delivery of the Work

5. You agree to deliver to us on or before October 1, 2010, a first draft manuscript of the book. The MIT Press will send the manuscript out for review and provide you with those reviews. We agree to discuss the reviews and, if necessary, you will make revisions to the manuscript based upon our discussions.

You agree to deliver to us, in substance, content, form, and style satisfactory to us, on or before November 15, 2010, an original double-spaced manuscript plus one (1) clean and legible copy of the Work, including double spaced notes, tables, references, and captions; the originals of all documentation required under paragraph 3; and one set of illustrations ready for the printer, prepared according to specifications that we shall supply. You agree to retain one copy of these materials yourself. You also agree to submit with the manuscript a copy of any electronic version of the Work that may exist.

If in our judgment any of the materials that you deliver need to be retyped, redrawn, or relettered, and if you choose not to do such work yourself, then we shall be free to have this work done by someone else, and you agree to reimburse us for this expense.

If you fail to make delivery of an acceptable manuscript by the date specified above, and unless within (60) days thereafter we consent in writing to postpone the delivery date, this contract will terminate. In such event, you agree to return all monies advanced under this Agreement, if any, and then we shall grant back to you all the rights granted to us in paragraph 1.You agree, moreover, that you will not thereafter permit the Work to be published elsewhere without first having offered to reinstate this agreement on the same terms as contained herein. If we do not accept this offer within ninety (90) days of our receipt of it, then you will be free to publish the Work elsewhere.

Size of the Work

6. The Work as delivered to us will consist of an unformatted manuscript of approximately 80,000 words and 30 B&W images.

Agreement to publish

7. As soon as practical after receipt of the final and complete version of the Work, and after its formal acceptance by The MIT Press Editorial Board, we shall publish the Work in the English language at our own cost and expense in such manner, style, and format and at such price as appears to us best suited for the sale of the Work.

Editing

8. Unless it has been agreed that the Work is to be printed directly from your submitted camera-ready copy, we shall edit the text to conform to the style that appears to us best suited to the Work. After it has been copy-edited, the Work will be returned to you for review. This will be your final opportunity to make changes in the Work.

Proof

9. You will be responsible for reading and correcting proof. When galleys or page proofs of the Work are submitted to you, you agree to correct typographer’s errors and return proofs to us promptly. If you do not return corrected proofs within thirty (30) days after we have mailed them to you, we shall be free to proceed with the manufacture and publication of the Work without waiting for your return of proofs. If for any reason you cannot read proofs, then we shall hire someone else to do so, and you agree to bear the expense of this proofreading.

Author's alterations

10. The cost of author’s alterations in proof (that is, changes to text that vary from the final copy-edited typescript) will be borne by us to the extent of 10 percent of the cost of the original composition but beyond that amount will be borne by you.

Index

11. If we request that an index be included in the Work, you agree to deliver the copy for such index to us within twenty-one (21) days after we have mailed final page proofs to you. If you cannot prepare the index yourself, or if the delivered index is in our judgment inadequate, we shall be free to have the index prepared or revised by someone else, with the cost of such preparation or revision to be borne by you.

Basic royalties

12. During the continuance of this agreement we shall pay you royalties computed as the following percentages of cash actually received by us on sales (less returns) of the Work as published by us:

(a) On sales of any hardbound edition in North America: 10% on the first 2,000 copies; 15% thereafter.

(b) On sales of any paperback edition in North America: 10% on the first 2,000 copies; 15% thereafter.

(c) On sales of any hardbound or paperback edition outside North America: two-thirds of the applicable domestic rate in section (a) or (b).

(d) On sales of overstock: 5 percent of our actual cash receipts from the sales, in lieu of any other royalty, except that if our net receipts from the sale of such copies are less than the manufacturing cost of the copies sold, no royalties will be payable, and no such royalties will in any event reduce our receipts to less than the manufacturing cost of the books sold.

Royalty-free copies

13. We expect to distribute free copies of the Work for promotion, advertising, review, samples, and similar purposes; no royalties will be payable on such copies.

Royalties from other sources 14. If we sell or license, whether exclusively or nonexclusively, all or any part of any right you have granted to us in the Work, we shall pay to you, at the time of the next royalty payment after receipt of any net proceeds of any such sale or license, the following percentages of those net proceeds (“net proceeds” means total cash receipts less all expenses incurred by us in connection with or pursuant to the sale or license):

(a) If the sale or license concerns the right to publish (that is, to reproduce and distribute) the Work or any portion thereof, whether by means of a bookclub, in a periodical or other compilation, through a copublication agreement with another publisher, in a machine-readable medium (including transmission electronically by wire or wireless or any other technology), or otherwise; or the right to display the Work by means of transmission electronically by wire or wireless or any other technology; or the right to make any derivative work other than a dramatization: 50 percent.

(b) If the sale or license concerns the right to perform the Work, or the right to dramatize the Work: 85 percent.

Electronic rights

15. (a) We may elect to make selected material from the Work available electronically as a form of promotion, and you agree to assist us in such promotions by providing electronic files for such material if available. Access to this material will be free through our World Wide Web site (or its electronic successor), and no royalties will be payable to you on such promotional distribution.

(b) We may make the Work as a whole or in part commercially available for sale or license electronically, whether via ftp, the World Wide Web, third-party servers, or other means. Income from such sales or licenses may take several forms. If it comes in the form of fees for "browsing," where the person or entity receiving access would not own the rights of downloading or repeated access, it will be considered a subsidiary right, and we shall pay you 50% of our net proceeds from any such license (after recovering the cost of converting files to a form that allows such browsing). If the income comes from electronic sales or licenses of the Work, such as the license of a continuing right to access the Work in electronic form, or of the right to download it to a local reader, we shall pay you 15% of the net income from such license (after recovering the cost of converting files to a form that allows such sales or licenses).

(c) In such cases of electronic licenses, we shall endeavor to use whatever technology is reasonable, in our discretion, to assist in protecting the copyright in the Work and to discourage improper copying or distribution.

Share of damages

16. If we receive any sum under any judgment, decree, or compromise in the form of lost profits, profits of an infringer, or statutory damages, we shall pay you, at the time of the next royalty payment after receipt of such sum, 10 percent of the excess of the sum over whatever legal fees and expenses of ours are not separately reimbursed by an infringer. However, no payment will be due to you from us if you are separately compensated in your own right under the same judgment, decree, or compromise.

Royalty statements

17. Royalty statements and payments will be made for each royalty year ending March 31 and will be mailed to you on or before the following June 30, with the exception that, if the amount due to you is less than $50, no payment will be made until the first subsequent royalty year in which the total amount due reaches $50. We shall deduct from any payments due to you whatever income or other taxes we are required to withhold under the laws of any jurisdiction.

Author’s copies

18. We shall present 3 copies of the Work to each author upon publication. If you request additional copies of your book or any other MIT Press title for your own personal use, and not for resale, we shall supply them to you at a discount of 40 percent from the retail price

Use of author’s name

19. You grant permission for the use of your name, picture, and autobiographical data in connection with the distribution and publicizing of the Work and the exercise of other rights you have granted to us.

Revisions

20. When requested by us in writing, you agree to revise the latest edition of the Work and to provide us with any new material necessary to keep the Work current and up to date. You agree that each provision of this agreement will govern any such revision or new material, wherever the context permits.

If the Work is primarily a textbook and if for any reason you cannot or choose not to undertake such revision or preparation of new materials within whatever reasonable schedule we may establish, you agree that we may engage some other person(s) for that purpose and deduct the cost thereof from royalties accruing to you on subsequent editions. If the material is prepared by others, that fact will be stated in the revised edition. You will, however, be given an opportunity to review all revisions and new materials before publication.

Work out of print

21. If we should decide at some time after three years from the date of initial publication to terminate this agreement and discontinue publication of the Work, we shall advise you of this in writing. You will then have the right to require, by written notice, a return to you of all rights granted to us in the Work. You will at that time also be given the option to purchase, at 25 percent of actual cost, the negatives of the Work, should they exist, and to purchase at actual manufacturing cost (plus shipping) any copies and unbound sheets remaining in our hands. This option will remain open for thirty (30) days following termination of this agreement; thereafter we shall be free to dispose of any negatives, copies, or sheets in any way we see fit, without payment of any royalties. (If, however, the means of disposition is sale of stock to a wholesale remainder dealer, then paragraph 12d will apply.)

Validity of licenses

22. If any right granted to us in paragraph 1 is returned to you by operation of law or according to the terms of this agreement or otherwise, such right will remain subject to any license then in force, and we shall continue to collect and distribute all proceeds therefrom as if we remained the grantor of such rights.

Notices

23. Any notice pertaining to the substance of this agreement that either of us may wish to give to the other will be sufficient if delivered by any means requiring receipt signature, or by facsimile transmission confirmed by first-class mail, to our respective addresses shown above, or as last appearing in our records, or to such other place as either of us may designate by written notice. Informal correspondence and remittances may be sent by ordinary mail.

Successors in interest

24. This agreement will be binding upon, and will inure to the benefit of, our respective successors, licensees, and assignees, as well as your heirs, executors, and administrators. However, during your lifetime, your interest in royalties hereunder may be assigned only as a whole, and at no time will any transfer of any of your rights hereunder be binding upon us until we have received due notice and evidence thereof in writing. No assignment may be made of any of your obligations under this agreement.

Force majeure

25. Neither we nor you shall be liable for delays caused by wars, civil riots, strikes, acts of God, labor controversies, governmental restrictions, or other circumstances beyond our or your control, and any period of time to be computed for the purposes of this agreement will be extended by the number of days that such circumstances remain in effect.

Two or more authors

26. In the event that there are two or more authors of the Work, all references in this agreement to “you” include all such authors jointly and severally, except that royalties and other payments will be divided as follows: Do you have a charity/fund you’d like the royalties to go to?

Governing law

27. This agreement will be deemed to have been executed in the Commonwealth of Massachusetts and will be interpreted under Massachusetts law and applicable U.S. federal law.

Amendments

28. This agreement contains the entire understanding between us. It may not be amended unless in writing signed by both of us. Its parts are separately enforceable and not mutually dependent.

Additional provisions

If the foregoing correctly reflects the understanding between us, please sign all copies in the place indicated below and return them to us. Our countersignature will make the agreement binding on you and on us as a valid contract, and we shall send you a countersigned copy.

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